(By Delegates Longstreth and Guthrie)
[Introduced February 13, 2013; referred to the
Committee on Government Organization then the Judiciary.]

A BILL to amend and reenact §30-40-7, §30-40-11, §30-40-12 and
§30-40-13 of the Code of West Virginia, 1931, as amended; and
to amend said code by adding thereto a new section, designated
§30-40-29, all relating to requiring applicants for, and
holders of, licenses under the West Virginia Real Estate
License Act to successfully pass criminal history record
checks; granting the West Virginia Real Estate Commission with
the authority to perform the criminal history record checks;
requiring the applicants and licensees to cover the costs of
performing the criminal history record checks; and providing
rule-making authority. Be it enacted by the Legislature of West Virginia:
That §30-40-7, §30-40-11, §30-40-12 and §30-40-13 of the Code
of West Virginia, 1931, as amended, be amended and reenacted; and
that said code be amended by adding thereto a new section, designated §30-40-29, all to read as follows:ARTICLE 40. WEST VIRGINIA REAL ESTATE LICENSE ACT.§30-40-7. General powers and duties.
The commission has all the powers set forth in article one of
this chapter and in addition:
(a) May sue and be sued in its official name as an agency of
this state;
(b) Shall employ an executive director and shall fix his or
her compensation subject to the general laws of this state. The
commission shall determine the duties of the executive director as
it shall consider necessary and appropriate to discharge the duties
imposed by the provisions of this code;
(c) Shall employ or contract with such other investigators,
hearing examiners, attorneys, consultants, clerks and assistants as
the commission considers necessary and determine the duties and fix
the compensation of such investigators, clerks and assistants
subject to the general laws of this state;
(d) Shall have the authority to issue subpoenas and subpoenas
duces tecum through any member, its executive director or any duly
authorized representative;
(e) Shall prescribe, examine and determine the qualifications
of any applicant for a license;
(f) Shall provide for an appropriate examination of any
applicant for a license;
(g) May enter into agreements with other jurisdictions whereby
the license issued by another jurisdiction may be recognized as
successfully qualifying a nonresident for a license in this state;
(h) Shall issue, renew, deny, suspend, revoke or reinstate
licenses and take disciplinary action against any licensee;
(i) May investigate or cause to be investigated alleged
violations of the provisions of this article, the rules promulgated
hereunder and the orders or final decisions of the commission;
(j) Shall conduct hearings or cause hearings to be conducted
upon charges calling for the discipline of a licensee or for the
suspension or revocation of a license;
(k) May examine the books and records relating to the real
estate business of a licensee if the licensee is charged in a
complaint of any violation of this article, commission rule or any
order or final decision issued by the commission: Provided, That
such examination shall not extend beyond the specific violation
charged in the complaint;
(l) May impose one or more sanctions as considered appropriate
in the circumstances for the discipline of a licensee. Available
sanctions include, but are not limited to, denial of a license or
renewal thereof, administrative fine not to exceed one thousand
dollars per day per violation, probation, revocation, suspension,
restitution, require additional education, censure, denial of
future license, downgrade of license, reprimand or order the return of compensation collected from an injured consumer;
(m) Shall meet at least once each calendar year at such place
and time as the commission shall designate and at such other times
and places as it considers necessary to conduct commission
business;
(n) Shall publish an annual directory of licensees in
compliance with the provisions of section thirteen, article one,
chapter thirty of this code;
(o) May sponsor real estate-related educational seminars,
courses, workshops or institutes, may incur and pay the necessary
expenses and may charge a fee for attendance;
(p) May assist libraries, institutions and foundations with
financial aid or otherwise in providing texts, sponsoring studies,
surveys and programs;
(q) May perform compliance audits on real estate brokerage
offices, education providers or any other person regulated by the
commission;
(r) May provide distance education courses for applicants for
a license sufficient to meet the educational requirements contained
in subsections (a) and (b), section fourteen of this article; and(s) Perform criminal history record checks in accordance with
section twenty-nine of this article on all applicants and
licensees; and
_____(s)(t) Shall take all other actions necessary and proper to effectuate the purposes of this article.§30-40-11. Application for license.
The commission shall only issue an original license to an
applicant if he or she:
(a) Submits an application, in writing, in a form prescribed
by the commission which must contain, but is not limited to:
(1) The applicant's social security number;
(2) The recommendation of at least two persons who:
(A) Are property owners at the time of signing the
application;
(B) Have been property owners for at least twelve months
preceding the signing of the application;
(C) Have known the applicant for at least two years;
(D) Are not related to the applicant;
(E) Are not affiliated with the applicant as an employer,
partner or associate or with the broker that will employ the
applicant;
(F) Believe the applicant bears a good reputation for honesty,
trustworthiness and fair dealing; and
(G) Believe the applicant is competent to transact the
business of a real estate broker, associate broker or salesperson,
as the case may be, in a manner that would protect the interest of
the public.
(3) A clear record indicating all jurisdictions where the applicant holds or has held any professional license.
(4) A clear record indicating if the applicant has been
convicted of any criminal offense or if there is any criminal
charge pending against the applicant, or a member or officer of the
brokerage business, at the time of application.
(b) Is at least eighteen years of age.
(c) Is a high school graduate or the holder of an equivalency
diploma.
(d) Is trustworthy, of good moral character and competent to
transact the business of a broker, associate broker or salesperson.(e) Submits to and successfully passes criminal history record
checks in accordance with section twenty-nine of this article.
_____(e)(f) Has paid the appropriate fee, if any, which must
accompany all applications for original license or renewal.§30-40-12. Qualifications for broker's license.
(a) An applicant for a broker's license shall:
(1) Have served an apprenticeship as a licensed salesperson
for two years or shall produce evidence satisfactory to the
commission, in its sole discretion, of real estate experience
equivalent to two years full-time experience as a licensed
salesperson;
(2) Submit satisfactory evidence of having completed the
required education course as provided for in section fourteen of
this article;
(3) Successfully pass the examination or examinations provided
by the commission; and
_____(4) Submit to and successfully pass criminal history record
checks in accordance with section twenty-nine of this article.
(b) No broker's license shall be issued in the name of a
corporation, association or partnership except through one of its
members or officers.
(c) No broker's license shall be issued in the name of a
corporation, association or partnership unless each member or
officer, who will engage in the real estate business, obtains a
license as a real estate salesperson or associate broker.§30-40-13. Qualifications for salesperson's license.
An applicant for a salesperson's license shall:
(1) Submit satisfactory evidence of having completed the
required education course as provided in section fourteen of this
article.
(2) Successfully pass the examination or examinations provided
by the commission.(3) Submit to and successfully pass criminal history record
checks in accordance with section twenty-nine of this article.§30-40-29. Authorization for criminal history record check; fees;
rules.
_____(a) This section sets forth the requirements to obtain access
to the Federal Bureau of Investigation National Criminal Investigation Center and the Criminal Justice Information Services
Division criminal history record information and to secure
information or reports from the Federal Bureau of Investigation
Criminal Justice Information Services Division and the National
Criminal Investigation Center. The scope of this section is to set
forth the applicability of the criminal history record check to all
applicants for and all holders of any license permitted by this
article.
_____(b) As used in this section, the following terms have the
meanings ascribed in this subsection, unless a different meaning is
clearly required by the context:
_____(1)"Applicant" means a natural person:
_____(A) Applying for an initial license under this article; or
_____(B) Applying for a renewal or continuation of a license under
this article.
_____(2) "Licensee" means a natural person who currently has a
license under this article.
_____(3) "Fingerprint" means an impression of the lines on the
finger taken for the purpose of identification. The impression may
be obtained electronically or in ink converted to an electronic
format.
_____(c) In order to make a determination of license eligibility,
the commission is authorized to require fingerprints of applicants
and licensees and to submit those fingerprints and the fee required to perform the criminal history record checks to the West Virginia
State Police and to the Federal Bureau of Investigation for the
state and national criminal history record checks.
_____(d) The commission shall require a criminal history record
check on each applicant and each licensee in accordance with this
section. The commission shall require each applicant and each
licensee to submit a full set of fingerprints, including a scanned
file from a hard copy fingerprint, in order for the commission to
obtain and receive national criminal history records from the
Federal Bureau of Investigation National Criminal Investigation
Center and Criminal Justice Information Services Division.
_____(e) The commission shall collect a fee from each applicant and
each licensee in an amount established by rule. The amount of the
fee must be sufficient to cover:
_____(1) The cost of the collection and transmittal of fingerprints
by persons, including local law-enforcement agencies that are
approved by the commission to capture fingerprints, to the West
Virginia State Police and the Federal Bureau of Investigation; and
_____(2) The cost of any amounts charged by the State Police and
the Federal Bureau of Investigation to perform the criminal history
record checks.
_____(f) The commission may contract for the collection and
transmission of fingerprints authorized under this section and may
order that the fee for collecting and transmitting fingerprints be payable directly by the applicant or licensee to the contractor.
_____(g) The commission is authorized to receive criminal history
record information directly from the Federal Bureau of
Investigation, in lieu of via transmission of the information from
the Federal Bureau of Investigation to the West Virginia State
Police.
_____(h) The commission shall treat and maintain an applicant's and
a licensee's fingerprints and any criminal history record
information obtained under this section as confidential and shall
apply security measures consistent with the Federal Bureau of
Investigation Criminal Justice Information Services Division
standards for the electronic storage of fingerprints and necessary
identifying information. The commission shall limit the use of
records solely to the purposes authorized in this section. The
fingerprints and the criminal history record information in the
custody of the commission are not subject to subpoena, other than
one issued in a criminal action or investigation; are confidential
by law and privileged; and are not subject to discovery or
admissible in evidence in any private civil action.
_____(i) The commission shall promulgate emergency rules pursuant
to section fifteen, article three, chapter twenty-nine-a of this
code as are necessary for the administration of this section,
including rules governing applicants for and current holders of
licenses permitted by this article and the frequency of criminal history record checks for those holding such licenses. However,
criminal history record checks for those holding licenses permitted
by this article shall be performed over the next three years with
checks being performed on one third of all licensees per year.

NOTE: The purpose of this bill is to require applicants for,
and holders of, licenses under the West Virginia Real Estate
License Act to successfully pass criminal history record checks.
The bill grants the West Virginia Real Estate Commission with the
authority to perform the criminal history record checks and
requires the applicants and licensees to cover the costs of
performing the criminal history record checks. The bill also
provides rule-making authority.

Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.